Squires v. Whipple

HutchinsoN, J. delivered the opinion of the court. The first question presented in this case, is, whether the testimony oflered by the plaintiff, in support ofhis declaration, was admissible? We ^ was. Although the plaintiff cannot recover upon a special contract of apprenticeship of a minor, unless it be in writing, as was decided in the former case between these parties; (see 1 Ver. Rep. 69,) yet the defendant must not be permitted to agree to make a regular written contract of that description, and thereby obtain the property and the labor of the plaintiff, and then refuse to execute the written contract, and go off with what he thus obtains from the plaintiff. This would operate as a fraud upon the plaintiff. Had the plaintiff refused to execute the writings, according to the first agreement, it might have been otherwise.— Here the testimony offered shows the fault to be all on the part of the defendant. He, only, refused to execute the indentures when requested by the plaintiff. The consideration, upon which the plaintiff delivered his property, bestowed his labor, &c. has failed ; and that by defendant’s breach of contract. The testimony was correctly admitted, and, if believed, would, prima facie, entitle the plaintiff to a verdict. The next question is, whether the evidence, offered by the defendant to accompany the record of a former recovery, was correctly excluded ? The record, thus admitted, shows that the plaintiff sued the defendant in assumpsit, declaring upon a special contract between him and the defendant, by which the defendant bound bis son John to the plaintiff as an apprentice; also adding the same general counts which compose the present declaration. That cause was tried, and a verdict was returned for the defendant. Exceptions, taken and allowed on said trial, show, that the plaintiff offered to prove his first count, by parol evidence; which was objected to by the defendant, because a contract of apprenticeship must be proved by written evidence, and was excluded by the Court. That decision was afterwards affirmed by this Court. It is probable, that the County Court, on trial of the present action, mistook the legal purport of that record : as it says nothing about any testimony, except what applied to the first count, they probably inferred that none else was adduced. This would not be a correct inference where there is a general verdict upon a declaration, containing several counts: the legal presumption, prima facie, is that every thing, which might be presented on such declaration, was presented and adjudicated upon. And a case, containing exceptions, should rehearse only such facts as present the questions of law that are to be litigated. Here, the presumption would be, that testimony was offered upon all the counts, and objections [115] taken to that only which applied to the first count; and, that the recovery barred the plaintifi, primes fade, without the testimony offered by the defendant. The. plaintiff, therefore, needed to avoid this prima facie bar, by testimony on his part, showing that no evidence was offered by the plaintiff on the general counts in said first action. After such proof on the part of the plaintiff, the testimony, offered by the defendant, would have been proper and necessary. It was not necessary when he ■offered it: but it ought not for that reason to have been excluded, and let the plaintiff take a verdict, when the defendant had made out a sufficient bar, by the record, without the aid of this parol testimony. If any objection could have been urged against the evidence of a former recovery for the same cause being given under the general issue,' an answer is furnished by the case ; which shows that the record was read by agreement of parties. Were it not so, the authorities, cited upon other points, show, also, that this defence is good under the general issue in assumpsit. I do not, myself, like the practice of putting the whole in issue to the jury upon non assumpsit, when the entire defence might be comprised in a single plea in bar. But the authorities sanction this practice. And it is well enough in a case like the present, where the damages are uncertain, and where the testimony, to show that the cause of action, now before the Court, was, or was not, litigated on the former trial, is proper to be weighed by a jury. And here, it must be understood, that the plaintiff cannot avoid this bar, without showing that no testimony whatever went to the jury, upon the general counts, in the trial of the first action. With such showing he ought to avoid the bar; for, in such case, it could not be said that there was any adjudication upon the subject In 6 Term Rep. 607, Seddon et al. vs. Tutop, the decision is fully in point, that the former recovery is no bar, unless the matter was submitted to the jury. Church and Isham, for plaintiff. Blackmer and Spencer, for defendant. A new trial is granted.